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The jurisprudential doctrine on the right to inclusive education: evolution. The Supreme Court ruling of December 14, 2017

Juan Rodríguez Zapatero Lawyer. Foundation for Law and Disability.

Presentation

The author, Juan Rodríguez Zapatero, a lawyer and expert in legal matters concerning disability and, in particular, inclusive education, analyzes the most significant aspects of jurisprudence on this subject. 

The text details how court rulings have addressed the right to inclusive education, prior to the existence of doctrine from the Constitutional Court. It then analyzes the ruling of January 27, 2014, and subsequent rulings, leading up to the significant Supreme Court ruling of December 14, 2017. 

This ruling is considered pivotal for definitively establishing inclusive education as a fundamental right, with its practical legal consequences and judicial protection. It particularly highlights the mandates and obligations of educational administrations in ensuring the effectiveness of this fundamental right. 

The Supreme Court’s ruling of December 14, 2017, is noteworthy for its comprehensive approach to the reasonable support and accommodations that educational administrations are obligated to provide to students with disabilities who have special educational needs. 

This is perhaps one of the transcendent issues, that of reasonable adjustments, so that students with disabilities can truly develop their full potential, their personal development, learning, and full educational inclusion, without suffering any type of discrimination due to their disability. 

The text concludes by pointing out that, despite the advances represented by all this jurisprudence, there is still a significant way to go for the effective and complete application of the Convention on the Rights of Persons with Disabilities in our country. 

The report The jurisprudential doctrine on the right to inclusive education: evolution. The Supreme Court ruling of December 14, 2017was published in issue No. 3 of the Annals of Law and Disability of June 2018, which DOWN ESPAÑA has accessed. Available on the website: www.fderechoydiscapacidad.es.

Index

  1. Introduction: the right to inclusive education as a fundamental right.
  2. Judicial pronouncements prior to the Constitutional Court ruling of January 27, 2014.
  3. The Constitutional Court ruling of January 27, 2014.
  4. The rulings of Superior Courts of Justice subsequent to the Constitutional Court’s ruling.
  5. The significant ruling of the Supreme Court of December 14, 2017.

1. Introduction: the right to inclusive education as a fundamental right.

The right to education is constitutionally a right for everyone. This is proclaimed by our Constitution, when in its Article 27 it begins by stating that “everyone has the right to education.” And when the same constitutional text, in its Article 14, recognizes the right of all Spaniards to equality and to not suffer discrimination, for any personal or social circumstance. 

From this perspective, the right to inclusive education is the right to education without any further adjectives. It is everyone’s right to access and remain in the ordinary education system under conditions of equality and to not suffer discrimination, including discrimination due to disability. 

For some time now, the rights of persons with disabilities have been regulated by law in our country. Thus, among other provisions, and as general regulations, mention can be made of Law 13/1982 on the social integration of disabled people (LISMI), Law 51/2003 of December 2nd on equal opportunities for persons with disabilities (LIUNDAO); or Law 39/2006 of December 14th on care for people in situations of dependency, to cite some of the most relevant ones. 

In the field of education, Organic Law 8/1985 of June 3 on the right to education already referred to those students who present “special educational needs,” a concept that appears for the first time through this regulatory text in our legal system. This concept continues in Organic Law 1/1990 (LOGSE) and in Organic Law 2/2006 of May 3 on Education, which allude to equity, equal opportunities, inclusive education, and non-discrimination. More recently, Royal Legislative Decree 21/2013 of November 21, which approved the Consolidated Text of the General Law on the Rights of Persons with Disabilities, is worth mentioning, as it recognizes their “right to inclusive education, with equity and free of charge, on equal terms with others.” 

In addition to all this, there is a profusion of regulations on the right to inclusive education through the various Laws and regulations of the Autonomous Communities, all of which systematically refer to inclusive education, equity, and equal opportunities. The approval of a basic and comprehensive Law on inclusive education is necessary and urgent. The current regulatory situation is one of enormous profusion and complexity, with different schooling modalities in the Autonomous Communities. This makes no sense, nor is it in line with what the regulation should be as a basic norm for a fundamental right, as it affects legal certainty and the principle of equality. 

The right to inclusive education is fully recognized in the Spanish legal system, at the regulatory level.

A different issue is the practical application and reality of inclusive education in our country, which, although not the subject of analysis in this work, is still far from being able to affirm that the effectiveness of educational inclusion occurs as a general rule. A significant path remains to be covered to achieve this fundamental right to be effective and for its application to be generalized in schools and in the decisions of the Administrations. Parents who have children with disabilities are the best witnesses to this.

The Convention on the Rights of Persons with Disabilities, of December 13, 2006 (ratified by Spain and in force since May 3, 2008), marked a significant historical milestone as it frames disability from the perspective of fundamental rights. However, it is not yet a fully assumed norm, neither by public authorities nor, in many cases, by the Courts of Justice themselves in their interpretations.

Law 26/2011 of August 1, on the adaptation of the Convention’s regulations, which modified different Laws, did not carry out this adaptation with regard to educational Laws.

Well, despite this abundance of regulations, surprisingly, until very recently, neither the Constitutional Court nor the Supreme Court had ruled on this matter in a comprehensive way, defining the right to inclusive education, its content, its scope, and the obligations and mandates of the Educational Administrations.

For this reason, it seems opportune and necessary to provide a brief outline of the evolution of jurisprudential doctrine in this area of inclusive education.

2. Judicial pronouncements prior to the TC ruling of January 27, 2014.

In a schematic way, we can speak of a first stage in the jurisprudential evolution, which would be embodied in the jurisprudential pronouncements, in which there was not yet a doctrine from either the Constitutional Court or the Supreme Court.

Nevertheless, some relevant jurisprudential pronouncements should be mentioned, such as the ruling of the National High Court of Justice of November 22, 2009, which applied the Convention to grant the right to a scholarship to a person with a disability. And the ruling of the Supreme Court of May 9, 2011 (RJ 2011/4100), which in a fundamental rights proceeding, considered the right to education to have been violated by the Educational Administration, in relation to the right to equality, because a classroom in a Public School was not provided with the necessary resources and means to attend to children with autism spectrum disorders, to whom the ruling states that they “find themselves with them in a position of unequal starting point, which makes them deserving of a response from the Educational Administrations appropriate to their needs”.

If we place the analysis in the rulings issued by the different High Courts of Justice, the characteristics that define this set of rulings would be the following:

  • The majority of these rulings, even though many of them were issued in special procedures for the protection of fundamental rights, do not approach the right to inclusive education from the constitutional perspective of such a right, but rather analyze the administrative acts under review in terms of whether they comply with ordinary legality or not. 
  • In these rulings, it is insisted that the right to education is not unconditional or absolute, and the emphasis is placed more on the limits and limitations of an economic and budgetary nature (ruling of the High Court of Justice of Andalusia of November 16, 1998 ­RJ 1998/4763­, ruling of the High Court of Justice of Cantabria of February 8, 2011 ­JUR 2012/386339­, or the ruling of the High Court of Justice of Castilla y León of October 26, 2012, which expressly states that the right to integrative education is not an absolute right). 
  • Another element to highlight is that in many cases, appeals invoking the right to equality in education are dismissed on the grounds that no proof of discriminatory or unequal treatment with respect to other identical circumstances was provided. That is to say, the parameter of comparison according to these rulings is not with respect to the rest of people who do not have disabilities (their equals), but with respect to other students who also have disabilities (in this regard, the ruling of the High Court of Justice of Castilla y León of March 22, 2013). In the same vein, mention can be made of the rulings of the High Court of Justice of Andalusia of September 16, 1998, ­JCA 1998/4763­ and of August 28, 2001, ­ RJCA 2001/1111­).
  • The school placement opinions and psychopedagogical reports constitute the fundamental element on which the pronouncements and rulings of the judgments are based, giving them prevailing value. Even, as pointed out by the judgment of the High Court of Justice of Aragon of April 22, 2002 (JUR 2002/206601), the evidence provided by the parents “deserves due consideration, but in no way can it serve to invalidate the reports, evaluations, and opinions issued by the bodies called upon by law to carry them out.” In the same vein, judgments of the High Court of Justice of Castilla y León of March 20, 2009 (JUR 2009/234141), of May 13, 2011 (JUR 2011/293990), and of March 22, 2013, among others.

3. The Constitutional Court’s judgment of January 27, 2014

The Constitutional Court, in its judgment of January 27, 2014 (RTC 2014/10), ruled specifically on this fundamental right for the first time.

This ruling concerned the schooling of a minor who had a degree of autism and was also excluded from the mainstream system. The Constitutional Court did not grant protection (the Public Prosecutor’s Office requested the appeal be upheld, and two Justices issued dissenting opinions), on the grounds that in that case, the reports would have justified the minor’s schooling in a special education center.

The ruling frames the right to education for persons with disabilities as a fundamental right, as it expressly cites articles 27 and 14 of the Spanish Constitution and gives special relevance to the Convention on the Rights of Persons with Disabilities. 

In this ruling, the Constitutional Court analyzes the regulations governing the right to education for persons with disabilities and declares that:

From the previous regulations, it is clear as a general principle that education must be inclusive, meaning that the schooling of minors in a mainstream educational center should be promoted, providing them with the necessary support for their integration into the education system if they have any type of disability. Ultimately, the educational administration must strive for the inclusive schooling of disabled persons, and only when the adjustments it must make for such inclusion are disproportionate or unreasonable, may it arrange for the schooling of these students in special education centers. In the latter case, out of respect for the fundamental rights and legal interests affected, as we have explained above, said administration must externalize the reasons why it has chosen this option, that is, why it has decided to school the student in a special education center because the integration of the disabled minor in a mainstream center is unfeasible.

In other words, the Constitutional Court in this ruling makes it clear that education must be inclusive and that this is the general rule, so that, with schooling in special education centers being the exception and precisely because fundamental rights are at stake, a justification is required to prove that the integration of the disabled minor in a mainstream center is unfeasible.

4. Rulings of Superior Courts of Justice subsequent to the Constitutional Court’s ruling

The rulings of the Constitutional Court (previously analyzed) represented a significant shift, as the jurisprudential rulings after that sentence, by the High Courts of Justice and Administrative Litigation Courts, followed the principles of constitutional doctrine. However, it should be noted that in many cases they introduced other considerations and requirements for motivation of undoubted importance. 

The entirety of this doctrine is detailed in the following sentences:

Ruling of the High Court of Justice of Catalonia of November 9, 2015 (JUR 2015303775), ruling of the High Court of Justice of Castilla-La Mancha of February 1, 2016 (JUR 201665981), ruling of the High Court of Justice of La Rioja of July 21, 2016 (fundamental rights appeal 199/2015), ruling of the High Court of Justice of the Valencian Community of November 15, 2016; and rulings of the High Court of Justice of La Rioja of June 14, 2017 (JUR 2017199323) and of January 25, 2018 (ruling no. 19/2018).

Some of them—such as the ruling by the High Court of Justice of Castilla La Mancha of February 1, 2016—also emphasize the socializing aspect that mainstream schools offer, especially when it had not been proven that the child’s enrollment in a mainstream educational center would impose a disproportionate burden on the Administration. It already indicated that enrollment in a special education center is only an option when the possibilities of applying inclusive education have been exhausted or if it would cause harm to the child.

And in the same vein, the aforementioned rulings by the High Court of Justice of La Rioja, starting with the ruling of July 21, 2016, highlight the need for the Educational Administration to justify the decision to enroll a student with a disability in a special education center when it is “proven that the possibilities of the student’s inclusion have been exhausted.” Note that it speaks of proof, that not only the measures adopted have been exhausted, but also any other possibility of inclusion. As we will see later, this essential concept has been adopted by the Supreme Court in the important ruling of December 14, 2017, which is analyzed in more detail below. 

As can be seen from the analysis of the jurisprudential evolution in this matter, it should be noted that the first rulings, even with the full application of the Convention on the Rights of Persons with Disabilities, which Spain ratified and entered into force on May 3, 2008, with some exceptions, maintained a doctrine and an interpretive line that was certainly not in line with said Convention. This was because the right to inclusive education was not analyzed from a fundamental rights perspective, and above all, the reports from the Educational Administration were prioritized, granting them a virtual presumption of truthfulness, without weighing or judging their content, precisely from the viewpoint of the fundamental right to inclusive education. Hence, they were generally unfavorable regarding the claims of parents of students who requested that their children be enrolled in mainstream schools, with the necessary support.

This jurisprudential situation changed with the ruling of the Constitutional Court of January 27, 2014, which for the first time resulted in a pronouncement on the inclusive education of persons with disabilities, from the perspective of fundamental rights and already carrying out a proportionality assessment, with the necessary motivational requirements from the Educational Administration to justify decisions to enroll students in special education centers, which, as the Constitutional Court itself pointed out, implies the externalization of the reasons for such a decision “out of respect for the fundamental rights and legal interests affected.”

The rulings of Superior Courts of Justice issued after the aforementioned ruling by the Constitutional Court, generally followed the constitutional doctrine and, to a large extent, specified and expanded the requirements for motivation, making it clear that it is the responsibility of the Educational Administrations themselves, when deciding to enroll students with disabilities in special education centers, to motivate and prove the impossibility of educational inclusion in a mainstream center for the student.

These rulings already delve into the analysis and evaluative judgment of the content of psycho-pedagogical reports, enrollment assessments, and other reports issued by the competent bodies of the Educational Administrations, also weighing and taking into consideration as valid evidence the expert reports and other documentation that the parents of said students provided in the corresponding judicial proceedings. 

This was the situation of the jurisprudential doctrine on inclusive education when an important pronouncement by the Supreme Court was about to occur in the ruling that will be analyzed below.

5. The significant ruling of the Supreme Court of December 14, 2017

In its ruling of December 14, 2017 (ruling no. 1976/2017, cassation appeal 2965/2016), the Supreme Court has ruled in depth and with detail on the essential content of the right to inclusive education, that is, the right to access and remain in the mainstream education system on equal terms, without any type of discrimination.

Briefly, the case that led to this ruling concerned a child with autism, who had been enrolled in a mainstream school for some time, with support from a TEA classroom. The Education Administration, in this case the Autonomous Community of La Rioja, altered this arrangement, deciding that he should be enrolled in a special education center. The ruling of the Superior Court of Justice of La Rioja upheld the parents’ appeal, declaring the minor’s right to inclusive education, and the Supreme Court, in this ruling, dismissed the cassation appeal filed by the Autonomous Community of La Rioja.

The analysis of this ruling must necessarily refer to three essential aspects: the conceptualization of the right to inclusive education as a fundamental right and its scope (i); the obligations that, as the essential content of this right, educational centers and Public Administrations with educational responsibilities have, which the Supreme Court itself calls “mandates” (ii); and the transcendent aspect of what is the judgment of reasonableness and the requirements of motivation that must be met by resolutions agreeing to the enrollment of students with disabilities in special education centers (iii). 

Regarding the first of the issues raised, the High Court in this ruling of December 14, 2017, establishes a series of relevant considerations that can be summarized as follows:

  • The Supreme Court expressly mentions articles 14 (right to equality) and 27 (right to education) of the Constitution in close connection between the two, to refer to the “fundamental right to equality in access to education.” In Legal Basis four, it further specifies this right, in the sense that “to guarantee effective equality and non-discrimination in the exercise of the right to education of students with disabilities or serious behavioral disorders, the principles of normalization and inclusion apply, both for access and for remaining in the education system”1. Therefore, inclusive education has a clearly constitutional dimension in the relationship between the right to equality of article 14 and the right to education of article 27 of the Constitutional Text; it also being a constitutional mandate to remove any obstacle that hinders the effectiveness of such right. For this reason, the citation of article 9.2 of the Constitution in the ruling is significant.
     
  • The concept of “permanence in the education system” must be highlighted. The fundamental right is not only concretized in access to education, under inclusion, but the right also includes permanence in the ordinary education system under conditions of equality and without discrimination. Therefore, the fundamental right will not be guaranteed by the student accessing the ordinary education system, that is, by being enrolled in an ordinary educational center, but rather educational inclusion is a continuous process, which requires monitoring and, therefore, that the measures and adjustments are not only determined, but are fully effective; that they are reviewed when necessary and always with the objective of integration 2.
     
  • The consideration of the right to inclusive education as a fundamental right has relevant legal consequences. Parents or guardians, in their capacity as legal representatives of minor children or, where applicable, the students themselves upon reaching the age of majority, can resort to the special procedure for the protection of fundamental personal rights, as set out in Chapter I of Title V of the Law on Contentious-Administrative Jurisdiction of July 13, 1998. This provides a broad guarantee for the protection of this right, in addition to expedited deadlines, as this special procedure can be used to challenge not only decisions denying enrollment in mainstream educational centers, but also any type of resolution, decision, or even material action, or de facto action, that disregards educational inclusion. Thus, if a student is in an educational center without the necessary supports or reasonable adjustments, or if they are not provided effectively, an appeal can be filed through this procedure for the protection of fundamental rights. 
  • The Supreme Court ruling, in this third legal ground, emphasizes that domestic legislation (basically referring to Organic Law 2/2006 of May 3), even though it must be understood that all applicable regulations “must be interpreted in accordance with International Treaties.” It expressly mentions, specifically, Article 24 of the Convention on the Rights of Persons with Disabilities, of December 13, 2006, Ratified by Spain through the Instrument of Ratification published in the BOE of April 21, 2008. This has singular legal significance, in that both administrative bodies, as well as Courts and Tribunals, must directly apply the Convention, and in case of discrepancy between domestic legislation of any rank and the Convention, the latter prevails 3.

The second of the aforementioned aspects, which is of enormous significance in the field of the right to inclusive education, is addressed by the Supreme Court ruling, referring to what we could call the “essential content” of the right, that is, what the right to inclusive education entails; or to be more precise, what are the obligations of educational Administrations in this area.

The ruling starts from the essential premise that the right to education on equal terms imposes as a general norm or rule the “integration in mainstream schools with measures for attention to diversity, which can be flexible in the different educational stages if necessary.”

To achieve this principle or general rule – the Supreme Court adds in this ruling – the regulations “order” (an unequivocal expression that it is an unavoidable imperative mandate) the Administrations “to make an effort to provide specific, personalized, and effective educational support and attention for these students with special educational needs.” 

The terms “specific and personalized”, to refer to support measures for students with disabilities, is of great importance, as it implies that such measures must always be oriented according to the personal characteristics and the specific and determined needs of each student with a disability or functional diversity. A generic, vague measure or one outside the context of this necessary personalization is not valid. Therefore, support must mean a personalized educational response, based on the capabilities and potential of each student. It is not the student who must adapt to the system, but rather the system and the educational organization that must adapt to the educational needs of the student. This is the essence of inclusive education.

And furthermore, the measures must be “effective,” therefore, a practical verification of such support measures must be carried out. It is not enough to formally implement them and say that the obligation to provide resources has already been met. They must be effective. They must yield results, in order to achieve inclusion. This requires an evaluation and analysis of those adopted and, if necessary, the adoption of others that possess this essential characteristic of effectiveness. It is, therefore, an obligation of result, not solely an obligation of means. And based on the results obtained, it can be determined whether such measures have been effective or not, always from the essential parameter of inclusive education.

The concept of personalized and effective support measures is found in Article 24.2.e) of the Convention on the Rights of Persons with Disabilities, which is why the Supreme Court ruling makes an adequate adaptation or transposition of this provision of the Convention, which is already directly applicable in itself, as it is part of the internal legal system, having been ratified by Spain.

The Supreme Court ruling of December 14, 2017, is more precise. It goes further in articulating and specifying this obligation to provide personalized and effective support and attention measures for these students.

Thus, in the same Legal Basis four, number three of the ruling, it is highlighted that these supports must be made “within the General Education System”. That is, in an environment of mainstream educational centers, because that is the General Education System, not in special education centers, which, as we have seen, although they are part of the education system, are still an exception to the general rule of inclusion, which must take place within the scope of mainstream educational centers.

And the Supreme Court states that in addition to being made within the general Education system, it “must facilitate their effective education, make reasonable adjustments based on their individual needs, which create an environment that fosters maximum academic and social development, to achieve the objective of full inclusion”. It later adds that they must be oriented towards integration, they must be “necessary and adequate with the sole limit that they do not constitute a disproportionate or undue burden”. Legal Basis six of the same Supreme Court ruling insists on the constitutional and legal mandate of public authorities for inclusion and that the effectiveness of the right to education on equal terms requires that specific provision of means “that promotes this integration in the Mainstream Education System, with the due adaptations, based on the needs of the interested party.”

These are all statements with relevant legal scope.

As has already been specified, Educational Administrations have a primary or essential obligation to provide all the specific educational support and attention, which must be personalized and effective for these students with special educational needs. However, the obligation does not end with the provision of resources. This does not fulfill the mandate mentioned in the Supreme Court ruling of December 14, 2017.

As mentioned before, the support measures for students with disabilities, in addition to being specific and personalized, must be effective, with the scope already indicated. And alsoadequate. The adequacy must be understood in the sense that, in addition to being a function of the student’s educational needs, it must be oriented towards fostering their academic and social development, for which the Supreme Court refers to the need to create “an environment” that favors this educational development and evolution., para lo cual el Tribunal Supremo alude a que ha de crearse “un entorno” que favorezca ese desarrollo y evolución educativa.

To put it plainly, reasonable adjustments and support measures, if not oriented towards full educational inclusion, violate the fundamental right of students with disabilities or functional diversity, because the necessary and essential conditions for the effective exercise of the right to inclusive education are not being guaranteed.

As can be easily deduced, this will have significance in the administrative acts and resolutions issued by the Educational Administrations in this area, since if the possibilities for inclusion have not been exhausted, and specific, personalized, effective, and adequate support measures have not been put in place – in the terms discussed above – and the rest of the motivation requirements indicated by the Supreme Court ruling of December 14, 2017, are not met, these administrative acts would be null and void by operation of law pursuant to Article 47.1.a) of Law 39/2015, as they would be violating the fundamental right to education on equal terms or inclusively, and specifically, Articles 14 and 27 of the CE would be violated.

The instrument available to Administrations with responsibilities in education, to determine the educational needs of these students and establish those supports and educational attentions, are the assessments carried out by the Educational Guidance Teams of the schools and the corresponding bodies of the Educational Administrations. The Supreme Court also clarifies this matter and points out – in the fourth legal ground, fifth number – that it must be carried out “as early as possible by qualified personnel and in the terms determined by the educational Administrations.” It specifies that an assessment must be made at the beginning and end of the school year. And something that is essential, evaluating “the achievement of the objectives proposed in the initial assessment.” The consequence of an assessment is that it allows for “adequate guidance.” To this end, the Supreme Court states that the action plan, the schooling modality, and promoting, whenever possible, “greater integration, which is, as has been said, the general principle” should be modified.

Once again, we are faced with other considerations of notable legal significance.

In practice, many psycho-pedagogical assessments of these students focus on highlighting their deficits and limitations by emphasizing the barriers they face in various areas (cognitive, autonomy, psychomotor skills, learning, communication, and sociability, among others). In other words, it continues with a clinical-sanitary model, such that these assessments are not oriented towards inclusion, but rather towards segregation, highlighting factors of differentiation and exclusion of students, as they are being categorized based on largely clinical diagnoses and through standardized, test-type methods and instruments, which have nothing to do with determining students’ educational needs. It should be noted that this is one of the most widespread practices, which demonstrates the not-yet-overcome legacy of a clinical-sanitary model, which is in no way compatible with the current conception of disability from a social and fundamental rights perspective. The United Nations Committee on the Convention has made this very clear in General Comment No. 4/2016, when it states that “education of persons with disabilities often focuses on a deficit approach, on their actual or perceived impairment, limiting their opportunities due to negative preconceived assumptions about their potential” 4.

Finally, we must refer to the conclusion reached by the Supreme Court ruling, after all these legal arguments.

If, in the exercise of the right to education for persons with disabilities, Article 14 of the Constitution is at stake, that is, the fundamental right to equality and to not suffer discrimination for any reason (certainly not for any reason of disability either), as the Constitutional Court has pointed out – repeatedly in its doctrine – the analysis of the violation of the principle of equality before the law of the article of the CE requires carrying out a judgment or canon of constitutionality, which specifies that although the principle of equality does not in all cases imply equal legal treatment, so that not all inequality constitutes an infringement of Article 14, there must be “objective and reasonable justification.” As stated in the TC ruling 41/2013 of February 14, “for the difference in treatment to be constitutionally lawful, it is necessary that the legal consequences derived from such a situation are proportionate to the intended purpose.” And that a “proportionality test is passed on the relationship between the measure adopted, the result produced, and the intended purpose.” In the same vein, TC rulings 23/194, 209/1987, 117/1998, and 200/2001, among many others.

Well, for the Supreme Court in this ruling of December 14, 2017, this proportionality test is specified in unavoidable requirements for motivation in the resolutions or administrative acts of the Educational Administration that decide the schooling of students with disabilities in special education centers, thus opting for the exception to the general rule, which is schooling in ordinary educational centers, with the necessary support.

These demands for justification are specified in three essential ones:

  • Firstly,that all efforts must be exhausted for the student’s educational inclusion in the ordinary education system. The Supreme Court ruling (Legal Basis sixth, first paragraph) states this expressly when it says that the mandate for Public Administrations to provide all means and support to these students to achieve their educational integration, based on their needs, adds that “resorting to the special education center system is only possible if it is justified that, after exhausting efforts for such integration, it is appropriate that this option under these conditions would justify different treatment.” To be precise, it should be noted that this concept of exhausting the possibilities of student inclusion is assumed by the Supreme Court and made its own, but it originates from the ruling of the Superior Court of Justice of La Rioja 252/2016 of July 21, which was precisely the subject of cassation in the proceedings in which the Supreme Court ruling was issued and whose appeal in cassation was filed by the Autonomous Community of La Rioja. The concept is absolutely relevant, as based on the doctrine of the Supreme Court ruling, educational administrations will not be able to agree to or make decisions on the enrollment of students with disabilities in special education centers if the possibilities of inclusion in a mainstream educational center have not been exhausted. Furthermore—and this must be emphasized—the Supreme Court speaks of justification, so a mere rhetorical declaration or mention will not suffice; it must be fully proven and accredited that all efforts have been made for integration and that the actions we have previously analyzed have been carried out. Incidentally, it should also be highlighted that the Supreme Court, when analyzing the ruling of the Superior Court of Justice of La Rioja, refers to the fact that all means must be provided for inclusion and that in the case of the ruling, they were provided, without positive results, but also refers to “other inclusion possibilities,” so the accreditation that inclusion possibilities have been exhausted includes not only those that have been implemented but also other possible ones, with the inclusive purpose. This implies a considerable requirement for accreditation and full proof of all actions and processes followed with respect to the student in this regard.
  • Secondly, the second element that the resolutions of the Educational Administrations must contain to justify the enrollment of students with disabilities in special education centers refers to “the burden of explaining why the support required by a student cannot be provided with the diversity attention measures of mainstream centers” (Legal Basis fifth, number fourth of the ruling of the Supreme Court of December 14, 2017). This is another necessary requirement that must be met for the indicated purposes. In this regard, the Educational Administrations, in their psycho-pedagogical reports and enrollment assessments, must make it very clear that the support measures and the reasonable adjustments and resources required by the student with disabilities are not available or provided by the mainstream education system. Generic statements or excuses of an economic or organizational nature are not acceptable here either. Understanding, moreover, that – as the United Nations Committee has pointed out in General Comment No. 4/2016, the availability of adjustments “must be considered with respect to a broader set of educational resources available in the education system, and not limited to the resources available to the educational entity in question.” Because a specific resource or support teacher is not available at a particular mainstream school, this cannot justify a decision to enroll the student in a special education center, if the support and measure are available within the education system, even if that specific school does not have it.
  • In addition to the two parameters, criteria, or motivational requirements analyzed, the Supreme Court ruling also requires that the reports on which the Educational Administration relies “must explain why the enrollment in a mainstream school, with the necessary support, constitutes a disproportionate burden for the Administration,” that is, why the exceptional is chosen over the ordinary. Certainly, this aspect of proportionality is not specified by the Supreme Court. In any case, it refers to a “disproportionate burden” for the Administration (Legal Basis five, last paragraph). Proportionality is a function of context, as the UN Convention Committee has pointed out. And the availability of resources in the system must be analyzed based on the student’s needs, without a univocal or general criterion. Disproportionality must be linked to the concept of the necessity and adequacy of support. If these are necessary and adequate, there can be no talk of a disproportionate burden. 

Up to this point, the analysis and evaluation of the Supreme Court ruling of December 14, 2017. 

Its virtuality lies in the fact that it already constitutes jurisprudential doctrine, along with the previous ruling it mentions, the ruling of the same High Court of May 9, 2011 (RJ 2011/4100) and the ruling of the Constitutional Court 10/2014 of January 27 (RTC 2014/10). And that this ruling contains in a detailed and reasoned manner what we can consider the essential content of the right to inclusive education and especially the mandates that Educational Administrations have in this regard and the requirements for motivation of the resolutions that decide the schooling of students with disabilities in special education centers, in such a way that if these obligations and motivation requirements are not met, these resolutions must be understood as violating the fundamental right to inclusive education. 

Without a doubt, it is a ruling that deserves a favorable judgment in the current state of the inclusive education landscape in Spain. 

However, in our opinion, the full recognition of the right to inclusive education must not only be based on the motivation requirements indicated or the constitutional balancing judgment by the Educational Administrations regarding schooling in special education centers. 

We must move forward – and urgently – towards the full recognition of inclusive education for all people and the integral application of the Convention on the Rights of Persons with Disabilities, including the current situation of special education centers – which are certainly not mentioned in the Convention – and which must be transformed into resource and support centers for mainstream educational centers, but not constitute a form of schooling in themselves, as this is incompatible with the right to inclusive education. 

The dignity and equality of our education system are at stake. 

León, May 24, 2018

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www.centrodocumentaciondown.com 

ANDALUSIA: Down Andalusia · Down Almería-Asalsido · Asodown · Aspanri-Down · Down Barbate-Asiquipu · Besana-Down Syndrome Association of Campo de Gibraltar · Down Cádiz-Lejeune · Cedown · Down Córdoba · Down El Ejido · Down Granada · Down Huelva-Aones · Down Huelva Adult Life · Down Jaén · Down Jerez-Aspanido Association · Down Jerez-Aspanido Foundation · Down Málaga · Down Ronda and Region · Down Sevilla and Province · Los Carriles Foundation ARAGON: Down Huesca · Down Zaragoza · Up & Down Zaragoza ASTURIAS: Down Principality of Asturias BALEARIC ISLANDS: Asnimo · Down Syndrome Foundation of the Balearic Islands · Down Menorca CANARY ISLANDS: Down Las Palmas · Down Tenerife-Trisomics 21 CANTABRIA: Down Syndrome Foundation of Cantabria CASTILLA Y LEÓN: Down Castilla y León · Down Ávila · Down Burgos· Down León-Amidown · Down PalenciaAsdopa · Down Salamanca · Down Segovia-Asido · Down Valladolid · Down Syndrome Association of Zamora · Fundabem CASTILLA LA MANCHA: Down Castilla La Mancha · aDown Valdepeñas · Down Ciudad Real-Caminar · Down Cuenca · Down Guadalajara · Down Talavera · Down Toledo CATALONIA: Down Catalunya · Down Sabadell-Andi · Down Girona-Astrid 21 · Down Lleida · Down Tarragona · Catalan Down Syndrome Foundation · Project Aura Foundation · Talita Foundation CEUTA: Down Ceuta EXTREMADURA: Down Extremadura · Down Badajoz ·Down Cáceres · Down Don BenitoVillanueva de la Serena · Down Mérida · Down Plasencia · Down Zafra GALICIA: Down Galicia · Down Compostela Foundation · Down Coruña · Down Ferrol-Teima · Down Lugo · Down Ourense · Down Pontevedra-Xuntos · Down Vigo MADRID: Danza Down · Aprocor Foundation · Sonrisas Down · Unicap Foundation MURCIA: Águilas Down · Asido Cartagena · Assido Murcia · Down Cieza · Down Murcia-Aynor · Fundown · Down Lorca NAVARRE: Down Navarre BASQUE COUNTRY: Aguidown · Down Araba-Isabel Orbe · Down Syndrome Foundation of the Basque Country LA RIOJA: Down La Rioja Arsido VALENCIAN COMMUNITY: Down Alicante · Down Syndrome Association of Castellón · Down Syndrome Foundation of Castellón · Downval-Working Together.

Notes

  • The text of the ruling includes the expressions contained in Article 74.1 of Organic Law 3/2006 of May 3 on Education.
  • This dimension of the right to inclusive education, for both access and permanence in the education system, has a clear connection with the concept of inclusive education as a continuous process, as set out in General Comment No. 4/2016 by the United Nations Committee on the Rights of Persons with Disabilities, paragraph 12.I.
  • The ruling of the National High Court of November 2, 2009 (RJCA 201060) is significant, as it applied the Convention to grant the right to a scholarship to a person with a neurological disability who, according to regulations, had not achieved the required score. The ruling states that “the entry into force of the Convention must obviously lead to the adaptation of Spanish regulations to the international instrument in all aspects that contravene it, but it also allows judicial bodies, immediately, to interpret current regulations in accordance with the Convention, filling the gaps in our legal system with the text of the Convention itself, thus guaranteeing the effective application of the rights recognized in the international norm to persons with disabilities.”
  • In this regard, and according to Corbett and Slee (2000, An International Conversation on Inclusive Education. In F. Armstrong, D. Armstrong & Ley Barton (Eds), Inclusive Education; Policy, Contexts and Comparativa Perspectives. London: David Fulton), inclusive education moves away from the emphasis that still today focuses on deficit, diagnosis, categorization, and individual treatment.

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